[2017] KEELC 673 (KLR)
The court found that the respondent, as the widow of the deceased defendant, was aware of and participated in the succession proceedings that led to the issuance of Letters of Administration ad Litem jointly to herself and the applicant. The court held that it was not the proper forum to challenge the validity of...
Source-derived case information.
- Citation
- [2017] KEELC 673 (KLR)
- Parties
- Applicant: Mary Nanjala Muhalya; Defendant: Ambrose Kipruto (Deceased); Respondent: Jane Chelangat Singoei
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Land Case 144 of 2000
- Procedural Posture
- Land Case / Ruling on Application for Revival and Substitution After Abatement Due to Defendant's Death
- Outcome
- application granted
- Judges
- FM Njoroge
- Legal Topics
- Abatement of Suit, Substitution of Parties, Letters of Administration, Revival of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mary Nanjala Muhalya
Applicant
Ambrose Kipruto (Deceased)
Defendant
Jane Chelangat Singoei
Respondent
Procedural Posture
Land Case / Ruling on Application for Revival and Substitution After Abatement Due to Defendant's Death
Legal Issues
- 1 Whether the suit should be revived after abatement due to the death of the defendant.
- 2 Whether the respondent, as widow of the deceased, can be substituted as defendant in place of the deceased.
- 3 Whether the Letters of Administration ad Litem produced are valid for the purposes of substitution.
Ratio Decidendi
The court found that the respondent, as the widow of the deceased defendant, was aware of and participated in the succession proceedings that led to the issuance of Letters of Administration ad Litem jointly to herself and the applicant. The court held that it was not the proper forum to challenge the validity of those Letters, and that their production was sufficient to justify the revival of the suit and substitution of the respondent as defendant. The court accepted the applicant's explanation for the delay and found that the requirements for revival and substitution under the Civil Procedure Rules and the Law of Succession Act had been met. Accordingly, the application for revival of...
Court Disposition
application granted
Orders
- The application dated 25/7/2017 is granted as prayed.
- The suit is revived.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KITALE
LAND CASE NO. 144 OF 2000
MARY NANJALA MUHALYA....................PLAINTIFF/APPLICANT
VERSUS
AMBROSE KIPRUTO (DECEASED)......................... DEFENDANT
AND
JANE CHELANGAT SINGOEI ................................RESPONDENT
R U L I N G
1. By an application dated 25/7/2017 the Applicant sought orders that the suit herein be revived, that the Respondent be substituted as the Defendant in this suit in place of the Deceased Defendant and that costs be in the cause.
2. The grounds on which the application is made is that the deceased defendant died in the year 2012, that the suit abated, and that the Respondent is the widow of the Deceased Defendant and that she thus deserves to be enjoined as a Defendant in these proceedings.
3. The application is opposed by the Respondent who filed her sworn replying affidavit dated 19/9/2017 on the same date. her affidavit identifies her as Jane Chelagat Kipruto. She states that she is not the Administrator to the deceased’s Estate and consequently she cannot be enjoined in the suit as a party. She avers that as per the Court Order of 26/9/2016, in Citation Cause No. 56 of 2012, she was ordered to apply for Letters of Administration within 60 days from the date of the order and in default the Citor be at liberty to apply. She avers that she never applied for Letters of Administration and the Limited Grant issued jointly to Mary Wanjala Muhalya and the Respondent has been issued in error as it contradicts the Order of the Succession Court issued on 26/7/2016. She states that the Grant has been fraudulently obtained and further avers that only a legal administrator of a deceased’s Estate can be substituted with a deceased litigant.
4. In her submission the Plaintiff avers that there was difficulty in making the Respondent the legal representative of the deceased’s estate and she details the history to that effect, which this court considers a proper excuse.
5. She further avers that Section 54 of the Law of Succession Act and paragraph 14 of the Fifth Schedule to the Act sanction the joinder of the respondent as a Defendant in this suit in place of the Deceased Defendant.
6. In reply the Respondent in her submissions urges that Order 24 of the Civil Procedure Rules is “very explicit that only a personal representative of the deceased ought to be substituted in place of a deceased party”. She cites the case of Najeno -vs- Serwanga, Civil Appeal No. 45 of 1971 [1974] EA and avers that she is not a personal representative of the deceased. The Respondent recalled an application in which the plaintiff had in 2013 sought to have the respondent joined as a Defendant but which was dismissed on the basis that the Respondent was not an administrator to the deceased defendant’s Estate.
7. She also states that the Plaintiff was in a position to apply for Letters of Administration herself upon failure by the Respondent to apply for them within 60 days as provided by the Court Order in Succession Cause No. 56 of 2012at theHigh Court at Kitale.
8. I have perused the record including the exhibits though some are irregularly attached to the Respondent’s submissions. It is clear that the respondent has all along been aware of proceedings that led to the Grant of Letters of Administration ad Litem. She is also the widow to the deceased. In my view, this court is not the proper forum in which to contend that the Letters of Administration ad Litem to the Applicant and the Respondent were issued in error or by way of fraud. It is not possessed of jurisdiction to determine that. Letters of Administration ad Litem have been produced before this court to justify a revival of this suit against the deceased Defendant and the joinder of the Respondent as a Defendant in the place of the deceased.
I therefore grant the application dated 25/7/2017 as prayed.
Dated, signed and delivered at Kitale on this 23rd day of November, 2017.
MWANGI NJOROGE
JUDGE
23/11/2017
Coram
Before - Mwangi Njoroge – Judge
Court Assistant - Isabellah
Ms. Wahome holding brief for Kundu for the Applicant
N/A for the Respondents
COURT
Ruling read in open court in the presence of Counsel for the Applicant.
MWANGI NJOROGE
JUDGE
23/11/2017